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Transcript of Discrimination on the basis of disability: reasonable ... Discrimination on the basis of disability:

  • 9/30/2015


    Discrimination on the basis of disability: reasonable accommodation, the EU case law

    and the UN Convention on the Rights of Persons with Disabilities


    • The European Union legal framework.

    • Reasonable accommodation and other key concepts on disability discrimination and employment.

    • The ECJ Case Law in the field of disability.

    • The UN Convention of the rights of people with disabilities as an interpretation tool and legal status under EU law.

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    The EU legal framework

    • Article 19 of the TFEU gives the EU the power to take action combating discrimination:

    “Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial o racial or ethnic origin, religion or belief, disability, age or sexual orientation.”

    • The Charter of Fundamental Rights includes two explicit references to disability :

    • Art. 21 of the Charter lists disability as one of the grounds on which discrimination must be prohibited.

    • Art. 26 deals with the “Integration of persons with disabilities” and states: “The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community”.

    The EU legal framework (cont)

    • Secondary European anti-discrimination legislation in respect to disability was introduced in the European Union through the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.

    • This “general” framework entails “specific” provisions dealing with disability :

    • Art 2. (1) (b) - Indirect discrimination

    • Art 5. - Reasonable accommodation

    • Art 7 (2) – Positive action

    • Recitals (17), (20) and (21)

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    Indirect discrimination (art.2 (1)(b))

    Indirect discrimination shall not be taken to occur when “as regards persons with a particular disability, the employer or any person or organization to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice”.

    Reasonable accommodation (art 5)

    “In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned”

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    (17) This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities.

    (20) Appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources.

    (21) To determine whether the measures in question give rise to a disproportionate burden, account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the organization or undertaking and the possibility of obtaining public funding or any other assistance.

    Positive action (art.7) (2))

    “With regard to disabled persons, the principle of equal treatment shall be without prejudice to the right of Member States to maintain or adopt provisions on the protection of health and safety at work or to measures aimed at creating or maintaining provisions or facilities for safeguarding or promoting their integration into the working environment.”

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    The concept of reasonable accommodation

    • First recognised with respect to religion.

    • The concept of reasonable accommodation is a central tenet of the so-called “social model” of disability.

    • The denial of reasonable accommodation as a sui generis form of discrimination.

    Reasonable accommodation : key terms

    • Reasonableness

    • Disproportionate burden

    • Fitness for work

    • Reasonable accommodation vs. positive action

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    Definition of disability

    • As with other grounds specified in the framework directive, no definition is provided of the term disability.

    • “The Commission's view that definitions of key concepts can simply be "left to Member States" is an over-simplification. EU-wide definitions will evolve as cases reach the Court of Justice. This will be a long process, and there will inevitably be a period of uncertainty as cases are taken through the courts”.

    House of Lords Select Committee (2000)

    The jurisprudence of the ECJ on Disability discrimination

    • Chacón Navas v Eurest Colectividades SA (2006) - Case C-13/05.

    • Coleman v Attridge Law (2008) - Case C-303/06.

    • Odar v Baxter Deutschland GmbH (2012) – Case C-152/11.

    • Ring v Dansk almennyttigt Boligselskab (2013) DAB – Case C-

    335/11 en Werge v Pro Display A/S- Case C-337/11.

    • Z v A Government Department and the Board of Management of a

    Community School (2014) - Case C-363/12.

    • Glatzel v Cv Freistaat Bayern (2014) - Case C-356/12

    • Kaltoft v Kommunernes Landsforening (2014) - Case C-354/13

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    Chacon Navas (Case C13/05). Background.

    • Mrs Chacon Navas who had been certified as being ‘unfit for work’ on the grounds of sickness was given notice of dismissal by her employer, Eurest.

    • Mrs Chacon Navas took a legal claim against Eurest on the basis that her dismissal amounted to disability discrimination.

    • The Spanish court, to which the claim was taken, took the view that a dismissal on the grounds of sickness could amount to a form of disability discrimination. However, in the absence of a definition of disability under Spanish law, the court referred the case to the ECJ.

    ECJ Ruling on Chacon Navas

    • Someone dismissed solely on account of sickness could not fall within the general framework laid down in the directive for combating discrimination on grounds of disability.

    • Disability must be understood as referring to “a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life”.

    • In order for the limitation to fall within the concept of ‘disability’, it must therefore be probable that it will last for a long time.

    • By embracing the medical model of disability, and focusing on the limitation caused by impairment and the need to prove such limitation, the Court's decision flies in the face of values underlying the Directive an Community disability policy” Liza Waddington

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    Coleman (Case C303/06). Background.

    • Mrs Coleman lodged a claim with the Employment Tribunal, London South, alleging that she had been subject to unfair constructive dismissal and had been treated less favourably than other employees because she was the primary carer of a disabled child.

    • The Employment Tribunal referred the matter to the Court of Justice, asking whether the directive on equal treatment in employment and occupation must be interpreted as prohibiting direct discrimination on grounds of disability and harassment related to disability only in respect of an employee who is himself disabled, or whether the directive applies equally to an employee who is treated less favourably by reason of the disability of his child.

    ECJ Ruling on Coleman

    • The directive, the purpose of which is to combat all forms of discrimination, applies not to a particular category of person but by reference to the nature of the discrimination.

    • An interpretation limiting its application only to people who are themselves disabled is liable to deprive the directive of an important element of its effectiveness and to reduce the protection which it is intended to guarantee.

    • By placing the focus on the commission of the discriminatory act in preference to the condition of the employee, Coleman represents a fundamental development in EC equality Law. (Tim Connor)

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    Jette Ring (Case C-335/11) Background • Mrs Ring and Mrs Werger were dismissed by their respective

    employers with a one month notice using a